Nuclear November: Why the NBA Players Association Should Wait to Decertify

When the clock struck midnight and the calendar page turned to July 1, 2011, the collective bargaining agreement (“CBA”) between the NBA and the NBA Players Association expired.  The expiration of the CBA entered into between the parties on July 29, 2005 led to a league lockout of players.

Over the course of the past eighteen months, the two parties attempted negotiations in an effort to prevent a lockout.  However, time and again, the negotiations reached an impasse and reports circulated that the disparity between each party’s demands was great.  According to NBA.com, team owners’ desire “. . . greater competitive balance and profitability,” and team owners were not accepting of the NBA Players Association’s most recent deal, which would raise the average NBA player’s salary by $2 million in the sixth-year of the new CBA.  The NBA’s last pre-lockout offer guaranteed players $2 billion annually for ten years, yet in 2010-2011, players received $2.17 billion.  NBPA.org notes that the NBA Player Association’s final pre-lockout offer “. . . would result in a transfer of over $8 billion dollars from the players to the owners. . .”

The league’s bold move of locking out its players for the first time since the 1998 season creates the risk of an absence of the 2011-2012 season, after a 2010-2011 season which enjoyed large viewership boosts.  Given this, along with the clear gap between each party’s wants and needs, the NBA Players Association must decide if it will continue negotiating with the league as a union, or choose what NBA Commissioner David Stern has termed the “nuclear decision,” and decertify as a union and pursue individual antitrust remedies.

Avoiding Decertification and Negotiating as the NBA Players Association

To understand the negotiating power that the NBA Players Association maintains by remaining intact as a union through the early stages of post-lockout negotiations, one must first understand the law governing CBAs.

The largest body of law governing CBAs is the National Labor Relations Act (“NLRA”).  In short, the NLRA is what gives NBA players as “employees” the right to collectively bargain with their employers–the NBA–and join the players’ union, the NBA Players Association.

Given that the NLRA governs collective bargaining agreements, the NBA Players Association filed a pre-lockout complaint with the National Labor Relations Board on May 24, 2011, asserting that the NBA failed to negotiate a new collective bargaining agreement in good faith.  The National Labor Relations Board is an independent federal agency which through the NLRA is “. . .vested with the power to safeguard employees’ rights.”

To date, the National Labor Relations Board has not ruled on the merits of the NBA Players Association’s complaint.  Should the National Labor Relations Board rule in favor of the complaint, the National Labor Relations Board may seek make-whole remedies on behalf of the NBA Players Association, including petitioning the “. . .  appropriate U.S. District Court for temporary injunction orders to restore the status quo where rights have been violated, under Section 10(j) of the [NLRA].”  If granted by a court, a temporary injunction could end the lock-out, restore the 2005 CBA and require both parties to return to the negotiation table in good faith to draft a new CBA.

The NBA’s paycheck schedule is arguably the greatest single factor as to why the NBA Players Association should remain certified as a union, enjoy the legal protections of the NLRA and continue negotiating with the NBA until November.   The largest percentage of NBA players will not miss a paycheck as a result of the lockout until November, while those on a 12-month paycheck schedule are scheduled to be paid through December 1, 2011.  Therefore, given that the NBA Players Association has already instituted action with the National Labor Relations Board, the NBA Players Association should continue earnest negotiation attempts with the NBA through November, as the status quo is arguably not affected until that time.  Until the status quo is affected, individual lawsuits pursued through antitrust remedies are arguably non-responsive to the concerns of the players in negotiating with the NBA to reach a new CBA.

A recent New York Times article noted that, “The [National Labor Relations Board] is known to move at a deliberate pace.”  Arguably, the most deliberate time for the National Labor Relations Board, an agency with the power to “. . . safeguard employee’s rights. . .”  to enter into the lockout drama would be when NBA players first miss a paycheck.  Given that the most recent known negotiations included an offer by the NBA to provide players $.17 billion less annually, while the NBA Players Association was willing transfer $8 billion to the owners, the NBA Players Association has a credible argument that the NBA is not fairly negotiating.  Thus, by November, if a closer proximity is not reached between the range of wants and needs on each party’s table, the National Labor Relations Board will have no choice but to deliberately rule on the matter and move forward with instituting temporary injunction proceedings on behalf of the unpaid players.  This posturing would likely cause the NBA to reassess its bargaining power and come to the table with a more equitable CBA proposal prior to being forced into negotiating one by a U.S. District Court Judge.

Thus, until players do not receive paychecks, the NBA Players Association’s bargaining power will not be strengthened by decertifying, as individual harm has arguably not been felt by the players until that point, making antitrust remedies unnecessary.  Given this, the NBA Players Association should move forward patiently as a union with earnest negotiations and allow the law governing the crux of the lockout–CBAs–to move the parties to a resolution of this matter.

Check back tomorrow, when I will further develop the case against decertification of the NBA Players Association by describing how decertification provides an inadequate remedy to the player’s needs in drafting a new CBA.

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6 thoughts on “Nuclear November: Why the NBA Players Association Should Wait to Decertify

  1. This is excellent – I have not seen this level of analysis of decertification, at least as to the NBA. Great start to the blog, and I look forward to future posts.

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